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[2003] NSWIRComm 182
respondent. Leave to appeal refused; appeal dismissed. The Full Bench confirmed those orders at [18].
The Full Bench did not grant Shakiq permission to appeal. It said that an appeal focused on factual findings must meet a significant public-interest threshold, and describing an alleged error as jurisdictional does not automatically meet that threshold. The Commissioner should have stated expressly whether the dismissal was harsh, unreasonable or unjust. But the Full Bench concluded that the Commissioner had in substance considered the right matters, and that her conclusions were open on the evidence. It therefore left the dismissal of Shakiq's unfair-dismissal claim undisturbed.
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2,012 words · generated 01/10/2026
This was an application for leave to appeal, followed by an appeal, from a decision of Commissioner Tabbaa dismissing Mohammed Shakiq's application for relief from alleged unfair dismissal. The Full Bench comprised Walton J, Boland J and Macdonald C. The judgment records that the Full Bench decided on 6 June 2003 to refuse leave and dismiss the appeal, then gave its reasons on 17 June 2003 ([1], [6]-[7]).
No linked legislation citations have been extracted yet.
Shakiq had been employed by Boral Australia Gypsum Limited from November 1988 until his dismissal on 2 February 2001. At dismissal he worked as a front end loader operator and cleaner in the company's Plaster Mill Division ([2]). The dismissal followed a complaint by three female employees about remarks allegedly made in the reception area on 31 January. The judgment records the allegation that Shakiq said to Carmel Cox, “I see a lot of new pussy around here”, then made a sniffing face and said, “And I can smell it from here” ([3]). The three women were present, and were alleged to have been offended and distressed ([4]).
At first instance, Commissioner Tabbaa found on the balance of probabilities that the alleged conduct occurred. She also found that Shakiq had been given details of the allegations and an opportunity to respond. She concluded that the conduct was deserving of summary dismissal and dismissed his claim ([5]). The appeal raised alleged errors of law and fact, as well as jurisdictional error ([9]).
The Full Bench did not treat the appeal as an opportunity simply to rehear the facts. Its central questions were whether the matter met the statutory threshold for leave and whether the Commissioner's treatment of the unfair-dismissal test disclosed jurisdictional error. The outcome was refusal of leave and dismissal of the appeal ([18]).
The Full Bench began with the statutory framework. Section 188(1) of the Industrial Relations Act 1996 (NSW) required leave for an appeal from a Commission member. Under s 188(2), leave depended on the Full Bench's opinion that the matter was of such importance that leave should be granted in the public interest. Section 188(3) permitted it to address leave separately from the merits ([8]).
The judgment applied the approach in Knowles v Anglican Church Property Trust (No 2), as well as the cited authorities King v State Bank of New South Wales and Box Valley Pty Ltd v Price. It reiterated that factual disputes which could be resolved on the evidence will generally not, without more, attract leave. In the words quoted at [11], “Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave.” The point is procedural: leave is a statutory threshold, not an automatic entitlement to appellate reconsideration.
The Full Bench also addressed the jurisdictional argument directly. It explained that alleging jurisdictional error does not itself justify leave. The relevant examination includes the nature of the issue and whether there is a demonstrable case that the Commission exceeded or failed to exercise its jurisdiction. The judgment links that inquiry to whether the decision was inconsistent with established law and principles ([12]).
A significant point concerned the Commissioner's wording. She found that the conduct was “deserving of summary dismissal”, but did not expressly say whether the dismissal was harsh, unreasonable or unjust. The Full Bench said it is important in a s 84 application to make an express finding in those statutory terms. That helps show that the correct test has been applied. It also explained why the summary-dismissal finding was not necessarily a substitute: the statutory assessment involves more than the employee's conduct, and is not limited to whether the employer lawfully exercised a right to terminate ([16]-[17]).
Despite that criticism, the Full Bench did not find jurisdictional error. It read the Commissioner's decision as a whole and concluded that her consideration was properly focused and had addressed the relevant matters, including a substantial discussion of whether the statutory test was satisfied ([17]). This is a contextual conclusion, not a suggestion that express findings are unnecessary. The judgment identifies the preferred practice, then distinguishes that practice from the question whether the omission invalidated this particular decision.
The Full Bench also considered the employment-history arguments. It expressed reservations about the employer's reliance on an allegedly poor record, which it considered was not made out on the evidence, and about the isolated, out-of-character nature of the misconduct. It noted some evidence that the employer had been looking for an opportunity to dismiss Shakiq ([13]). But the Commissioner had considered those matters and the other contested issues. The Full Bench held that her conclusions were open to her and that it was not appropriate to intervene, even if the Full Bench might have taken a different approach at first instance ([14]).
The judgment does not set out a comprehensive history of unfair-dismissal law. Its contribution, on the material provided, is narrower: it applies the existing statutory leave threshold and explains how the s 84 test should be expressed in a decision.
Before this decision, the judgment's cited authorities had established the high threshold for leave in appeals that mainly contest factual findings or discretionary decisions. At [10]-[12], the Full Bench relies on Knowles and refers to King and Inspector Moore in identifying that approach. It also quotes, through King, Box Valley's statement that fact disputes ordinarily do not attract leave unless there are other considerations ([11]). The judgment applies rather than displaces those propositions.
For s 84, the Full Bench drew on Outboard World Pty Ltd (Trading as Budget Waste Control) v Muir. That authority had warned against substituting a general term such as “unfair” for the statutory words “harsh, unreasonable or unjust”, because a catch-all expression might obscure distinctions relevant to the decision ([16]). Shakiq restates the importance of making an express finding in the statutory language ([17]).
The after-state in this judgment is therefore two-part. First, the exact statutory formulation is the preferred and important way to express the conclusion. Secondly, failure to use that formulation did not automatically amount to jurisdictional error in this case, because the Full Bench concluded that the Commissioner's reasoning as a whole addressed the proper considerations ([17]). The judgment does not say that a decision-maker may routinely omit the express finding, nor does it state that such an omission could never be jurisdictional. Its conclusion is tied to the reasons in the decision under appeal.
At [8], the Full Bench sets out the statutory leave structure: an appeal requires leave, leave depends on public-interest importance, and the Full Bench may deal with the leave application separately. In plain English, an appellant must first clear a statutory gateway before the appeal can proceed on its merits.
At [11], the judgment says that a mere contest about factual findings that were open on the evidence will generally not attract leave. In plain English, disagreement with how the first-instance member resolved the evidence is usually not enough on its own.
At [12], the Full Bench says a jurisdictional allegation must be assessed according to its substance, including whether there is a demonstrable case of exceeding or failing to exercise jurisdiction. In plain English, attaching the label “jurisdictional error” to a complaint does not decide the question; the alleged error must be examined against the Commission's authority and established principles.
At [17], the Full Bench states that a decision-maker should expressly find whether a dismissal was harsh, unreasonable or unjust. It then says the absence of that express finding did not establish jurisdictional error in the circumstances. In plain English, the correct statutory question should be stated clearly, but the appellate inquiry also considers whether the reasons as a whole show that the question was actually addressed.
At [13]-[14], the Full Bench records its reservations but declines to intervene. In plain English, identifying possible weaknesses in the employer's case did not itself entitle the appellant to a different result where the Commissioner had considered the relevant issues and her conclusions remained open on the evidence.
The judgment is most directly relevant to appeals under the former Industrial Relations Act 1996 (NSW) framework where the proposed appeal primarily disputes factual findings or the exercise of discretion. In that setting, [8] and [11]-[12] make the statutory leave requirement central. A party's dissatisfaction with factual conclusions will generally need something beyond a contest about evidence to meet the public-interest threshold.
It is also relevant where an appellant alleges that a Commission member failed to apply the statutory unfair-dismissal test because the reasons use language such as “deserving of summary dismissal” rather than expressly deciding whether dismissal was harsh, unreasonable or unjust. Paragraphs [16]-[17] identify both the drafting concern and the contextual approach used to assess jurisdictional error.
The judgment may also be relevant where the alleged misconduct is said to be isolated or out of character, or where an employer relies on an employee's history. The Full Bench considered those matters at [13]-[14], but it did not establish a general rule about how such evidence must be weighed. Its decision turned on the fact that the Commissioner had considered the disputed matters and had reached conclusions open on the record.
The judgment concerns a particular statutory regime and a particular appeal. It should not, on its own, be treated as stating the content of current unfair-dismissal laws or the operation of later appellate provisions.
The supplied judgment does not cite any decisions that post-date it or describe how later courts or tribunals treated Shakiq. It therefore provides no basis for identifying whether later decisions followed, distinguished, limited or departed from its reasoning.
The cases it does cite are earlier authorities. Knowles is identified as the leading authority on leave to appeal, and Box Valley is quoted for the difficulty of obtaining leave on factual contests ([10]-[11]). King and Inspector Moore are cited in connection with the leave principles ([10]-[11]). Outboard World is discussed in relation to the importance of using the statutory words for the unfair-dismissal test ([16]). Those citations explain the legal context in which the Full Bench decided Shakiq; they are not evidence of later treatment of Shakiq itself.
A research assessment of subsequent treatment would require later judgments or other provided legal sources. No such later material appears in the text supplied here.
The judgment does not define the precise boundary between a decision that fails to exercise jurisdiction and a decision that makes an error while exercising jurisdiction. It states that the nature of the jurisdictional issue and whether there is a demonstrable failure or excess of jurisdiction should be considered, with attention to consistency with established law ([12]). It does not provide an exhaustive test for all cases.
Nor does the judgment specify when omission of an express finding in the statutory language will amount to jurisdictional error. It says the express finding is important, then holds that the reasons in this particular decision were sufficiently focused ([17]). The decision leaves open how that assessment would apply where the reasoning did not substantially discuss the statutory test, or where the record showed that the decision-maker had treated lawful termination as conclusive.
The Full Bench's reservations about Boral's reliance on an alleged poor employment record and the isolated nature of the conduct are not resolved into general evidentiary rules ([13]). The judgment does not decide what weight either matter must receive in other cases, or what evidence would be sufficient to establish an employment-history contention.
Finally, the decision supplies no later authorities or current-law comparison. Its practical and doctrinal reach beyond the statutory provisions and appeal before the Full Bench cannot be established from this judgment alone.
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CITATION : Mohammed Shakiq v Boral Australia Gypsum Limited [2003] NSWIRComm 182 APPELLANT Mohammed Shakiq PARTIES : RESPONDENT Boral Australia Gypsum Limited FILE NUMBER: IRC 5318 of 2002 CORAM: Walton J Vice-President; Boland J; Macdonald C Appeal - Application for leave to appeal and appeal - Unfair dismissal - Jurisdiction - Applicant summarily dismissed for offensive conduct - Long employment history with employer - Importance of applying the correct test in relation to unfair dismissal claims - Held that dismissal was not harsh, unreasonable or unjust - Leave to appeal refused - Appeal dismissed CATCHWORDS : Unfair dismissal - Appeal - Application for leave to appeal and appeal - Unfair dismissal - Jurisdiction - Applicant summarily dismissed for offensive conduct - Long employment history with employer - Importance of applying the correct test in relation to unfair dismissal claims - Held that dismissal was not harsh, unreasonable or unjust - Leave to appeal refused - Appeal dismissed LEGISLATION CITED : Industrial Relations Act 1996 s 84 s 188(1) s 188(2) s 188(3) Box Valley Pty Ltd v Price (2000) 97 IR 484 Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 CASES CITED : King v State Bank of New South Wales [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Outboard World Pty Ltd (Trading as Budget Waste Control) v Muir (1993) 51 IR 167 Robert Gordon King v State Bank of New South Wales [2002] NSWIRComm 353 HEARING DATES: 06/06/2003 DATE OF JUDGMENT: 06/17/2003
APPELLANT Mr P J Adams Solicitor: Adams & Partners
LEGAL REPRESENTATIVES: RESPONDENT Mr K G Bennett of counsel with Mr G Jervis Australian Business Lawyers
JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH
CORAM: Walton J, Acting President Boland J Macdonald C Tuesday 17 June 2003
Matter No. IRC 5318 of 2002 MOHAMMED SHAKIQ AND BORAL AUSTRALIA GYPSUM LIMITED Application by Mohammed Shakiq for leave to appeal and appeal against a decision of Commissioner Tabbaa given on 30 August 2002 in matter no IRC 1448 of 2001
REASONS FOR DECISION OF THE COMMISSION [2003] NSWIRComm 182 1 This is an application for leave to appeal and, if leave be granted, appeal from a decision of Commissioner Tabbaa given on 30 August 2002 in which the Commissioner dismissed an application by Mr Mohammed Shakiq for relief from alleged unfair dismissal by Boral Australia Gypsum Limited, the respondent in these proceedings.
2 Mr Shakiq had commenced employment with the respondent in November 1988 and remained in employment until his dismissal on 2 February 2001. At the time of his dismissal Mr Shakiq was employed as a front end loader operator and cleaner in the respondent's Plaster Mill Division.
3 The Commissioner found that Mr Shakiq had been summarily dismissed on the basis of a complaint made against him by three female employees of the respondent that: On the 31st of January he had entered reception and said to Carmel Cox "I see a lot of new pussy around here". It is then alleged that he made a sniffing face and said "And I can smell it from here".
4 The three female employees, including Ms Cox, were standing in the respondent's reception area at the time Mr Shakiq made the remarks and were allegedly offended and distressed by the remarks.
5 After an extensive review of the evidence and submissions, Commissioner Tabbaa found as follows: I therefore find that, on the balance of probabilities, the actions of which the applicant was accused did occur and find no evidence that would suggest that the applicant had grounds to believe that his remarks to Ms. Cox would be acceptable to her. I further find that the applicant was given full details of the allegations against him and accorded every opportunity to respond. After considering all the evidence, submissions, and precedents related to such behaviour, I find that the nature of the applicant's conduct was such as have been deserving of summary dismissal. The applicant's claim is therefore dismissed.
6 In these appeal proceedings we adopted the usual course of directing the parties to file and serve their written submissions both on the question of leave and on the merits. However, the parties were advised that we would hear them first on the question of leave at a time and date fixed for that purpose and in doing so we would also have regard to the submissions on merit.
7 On 6 June 2003, we determined to refuse leave to appeal and dismissed the appeal. We indicated that we would shortly give reasons for our decision. These are the reasons for that decision.
8 Section 188(1) of the Industrial Relations Act provides that an appeal from a member of the Commission may only be made with leave of the Full Bench. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted. Section 188(3) provides that the Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.
9 It is apparent from the application that the appellant challenges the decision of Commissioner Tabbaa on the basis of alleged errors of law and fact and jurisdictional error.
10 The leading authority on the grant of leave to appeal is the judgment of the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382: See Robert Gordon King v State Bank of New South Wales [2002] NSWIRComm 353 at [52]; Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at [13]. 11 In King v State Bank of New South Wales the Full Bench said at par [54]: As was made clear by the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 the fact that an appeal seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in the form of leave to appeal. In this regard we would reiterate what was stated by the Full Bench in Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4]: "In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave."
12 In relation to the jurisdictional issue raised by an appellant, this does not, of itself, justify leave as each case is to be judged according to the statutory criteria. In such situations, the Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. This consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principles (Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381). 13 In reviewing the material on appeal we express some reservations about: the manner in which the respondent sought to rely on the appellant's allegedly poor employment record which, it seems to us, was not made out on the evidence; and, the isolated and 'out of character' nature of the appellant's misconduct in making the remarks that he did in front of three female employees. In this regard, there was some evidence that the respondent was looking for an opportunity to dismiss the appellant and the incident in the reception area provided that opportunity. However, because of the appellant's otherwise reasonable employment record over 13 years the respondent was forced to hunt about for more incriminating material to - as the Commissioner put it - "bolster" its decision to summarily dismiss the appellant.
14 In the result, however, Commissioner Tabbaa was very conscious of not only all of the matters in respect of which we have expressed reservations but also the other issues in contention between the parties at first instance. The Commissioner took these into account in weighing up the evidence including finding that the appellant had committed the conduct alleged against him. In deciding whether or not the dismissal was harsh, unreasonable or unjust, the conclusions she reached were clearly open to her and we do not consider it would be appropriate (notwithstanding that we may have adopted a different approach at first instance) for us to intervene on appeal.
15 In relation to alleged jurisdictional errors, Mr P Adams, solicitor for the appellant, contended on the question of leave that there was a constructive failure on the part of the Commissioner to exercise her jurisdiction because she: 1. Failed to determine the question of whether the determination of the appellant's employment was harsh, unreasonable or unjust. 2. Failed to determine whether the appellant was entitled to a remedy under Part 6 Chapter 2 of the Act notwithstanding the Commissioner found the allegations by the respondent proven.
16 It is true that Commissioner Tabbaa did not make an express finding that the dismissal was harsh, unreasonable or unjust. In Outboard World Pty Ltd (Trading as Budget Waste Control) v Muir (1993) 51 IR 167 the Full Bench said: First we deal with the argument for the appellant that the Commissioner erred by applying the wrong test in connection with the dismissal: "unfair" rather than "harsh, unreasonable or unjust" dismissal. We agree with Mr. Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term "unfair") to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s.246 rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one 'or more of the heads provided by the section. We take this view because, even though there may be some' circularity in the full phrase "harsh, unreasonable or unjust", we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair".
17 It is important when dealing with an application under s 84 of the Act that a member of the Commission makes an express finding as to whether or not they consider a dismissal to be harsh, unreasonable or unjust so that it is clear that the proper test has been applied. In this case Commissioner Tabbaa's finding was that "the nature of the Appellant's conduct was such as having been deserving of summary dismissal". It is not necessarily implicit in such a finding that the dismissal was not harsh, unreasonable or unjust because a consideration of issues under Ch 2 Pt 6 of the Act involves more than the conduct of a claimant and not merely findings as to whether an employer had lawfully exercised any right to terminate an employee. Nevertheless, we consider that the Commissioner's consideration of the claim was properly focused and addressed all of the relevant considerations including a substantial discussion otherwise in her decision as to whether the statutory test was satisfied. In the circumstances, we do not consider the Commissioner's decision admits of any jurisdictional error.
18 We confirm our previous orders as follows: (1) leave to appeal is refused; (2) the appeal is dismissed.
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Mohammed Shakiq
Boral Australia Gypsum Limited
Leave to appeal refused; appeal dismissed. The Full Bench confirmed those orders at [18].